The German Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz) (literally: Law on the improvement of law enforcement in social networks – NetzDG) has attracted much media attention since fully entering into force on 1 January 2018. This was sparked to a significant extent by a few high profile deletions, including a tweet from the responsible Minister for Justice.
This contribution will give a succinct overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a 'chilling effect' on free expression are borne out by the evidence. A review of the law and its effects is planned after an initial three year operation period, which should deliver ample data and regulatory experience while limiting the scope for potential harm.
The core obligations are setting up an effective and transparent complaints management infrastructure (§ 3 NetzDG) and compiling bi-annual reports on the complaints management activity (§ 2 NetzDG). Especially the latter reporting obligations are quite detailed and include provisions that set out the training and management oversight requirements of the social media platform operators. The complaints management infrastructure must chiefly ensure that the social networks delete or block illegal content within a specified timeframe. Deletion results in a global removal of the content from the platform, while blocking merely makes the content unavailable in Germany. Although blocking and deleting are thus distinct, they will be collectively referred to as deleting throughout the post.
NetzDG further distinguishes between manifestly illegal and illegal content and prescribes different deadlines for deletion. Manifestly illegal content must be deleted within 24 hours of a receiving a complaint, while merely illegal content allows for up to seven days before action must be taken. The most important exception to the seven-day deadline applies if operators refer the decision of whether to delete to an independent body of industry self-regulation.
Separately from this duty on social media platforms to delete content, it remains possible for anyone to seek criminal prosecution for any content that violates the criminal code, and social media platforms must preserve the deleted content for evidence purposes for ten weeks (§ 3 II 4 NetzDG). Additionally, NetzDG requires social media platform operators to name an agent in Germany that is responsible for receiving complaints. A failure to name or lack of response from a responsible agent attracts a fine of up to 500.000 Euros, while any other failure to implement a complaints management scheme as set out in NetzDG can draw a fine of up to 5 million Euros. The latter increases to 50 million Euros for legal persons and corporations under § 30 II 3 of the Code on Administrative Offences (Gesetz über Ordnungswidrigkeiten), see § 4 II 2 NetzDG.
For instance, one might attract criminal liability for defamation when describing an abortion doctor's work as 'babycaust' even though this does not fall under most definitions of hate speech, as it is not based on attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender. Conversely, posters by a far right party depicting ethnically stereotyped people on a flying carpet with the caption 'Have a good flight home' did not attract criminal liability even though it at least arguably constitutes hate speech on the grounds of race, religion and ethnic origin.
Hence, the analytical value of hate speech is limited due to the particular criminal provisions NetzDG is based upon. It would be more accurate to say that the statute itself does precious little beyond seeking the removal of content that one cannot already express in public without the risk of criminal prosecution and sanctions. The law expressly avoids creating new criminal offences and does not, in any real sense, seek to expand existing limitations on freedom of expression in Germany. The fact that one could in the past express many views that constitute incitement to hatred on social media platforms without any real fear of repercussions does not fundamentally alter that conclusion.
Conversely, in the second scenario the operator deletes content mistakenly deeming it illegal. Here, the issues become more complicated. The German Federal Constitutional Court has recognised that there is a presumption in favour of freedom of expression whenever it is unclear whether the expression is illegal, at least on topics of public interest. This has been settled case law ever since the famous decisions in Lüth and more recently in Wunsiedel. Notably, this protection extends to public forums, even where access to them is regulated through private law relationships. However, NetzDG notably does not require censorship (i.e. pre-emptively scrutinizing content before it is shared, which is unconstitutional under Article 5 I 3 Basic Law), nor does it discriminate against specific content (which would generally be unconstitutional). Rather, it primarily enforces legal obligations under § 10 TMG, and the requirement to delete only stretches to content already illegal under criminal law provisions.
Despite their prevalence in legal writing on the subject, concerns that social media platforms will, when in doubt, delete content rather than risk a fine, appear overstated. Overblocking is likely to arise, so goes the argument, due to the structure of the fines that apply to a systematic failure to delete illegal content. Hence, a prudent social media platform operator would, when in doubt and confronted with a flurry of complaints, delete content that is questionable, rather than risk a fine.
It is difficult to see why a social media platform operator, which ultimately requires continuous user engagement and content creation to be profitable, would adopt an overly aggressive deletion policy. An exodus of users would be sure to follow the consistent and arbitrary deletion of legal content, and thus critically undermine the viability of the social media platform. It therefore appears more likely that the limited scope of the fines and the inherent economic interests of social networks encourage a more nuanced deletion policy: one that complies with existing laws but avoids removing more content than necessary. However, even assuming a measurable 'chilling effect' this would not necessarily equate to the unconstitutionality of NetzDG.
The argument is that freedom of expression does not necessarily equate to a right to access to any specific means of expression. For instance, a recipient of social security was not entitled to claim the necessary transportation costs to travel to a protest meeting. Moreover, access to and expression on most social networks is already significantly limited through private law terms and conditions. These grant platform operators wide-ranging powers to delete content or even indefinitely suspend accounts of users for actions that are unlikely to fall afoul of German criminal law. Against this backdrop, it is difficult to sustain an argument that the potential for unintended side effects of NetzDG are a unique or would as such suffice to find it unconstitutional. Social media platforms are hardly a free speech paradise: users already operate in an environment where arbitrary limitations are placed on freedom of expression, where deletion and suspension of accounts may occur without the possibility of appeal or redress to courts, and where the terms and conditions of participation can be altered at the sole discretion of the platform operators at any time.
The constitutionality of NetzDG may to a considerable extent rest on an evaluation of the complaints management infrastructure that social media operators develop. Should it consistently, and inevitably, lead to a chilling effect on freedom of expression, then the argument for unconstitutionality grows stronger, but is in my view by no means straight-forward. Conversely, the Federal Constitutional Court would be less likely to take issue with this novel regulatory approach if the deletion of legal content is limited to individual, non-systematic mistakes. Ultimately, the goal must be to limit the divide between the online and offline world as far as possible: it is not evident why constitutionally acceptable limits on freedom of expression should not be extended and enforced on social networks.
SUGGESTED CITATION Theil, Stefan: The German NetzDG: A Risk Worth Taking?, VerfBlog, 2018/2/08, https://verfassungsblog.de/the-german-netzdg-a-risk-worth-taking/, DOI: https://dx.doi.org/10.17176/20180208-184652.
"Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence."
I am not following here. The view that a suppression of "loud and radical" voices could be a legitimate goal of limitations on freedom of expression was categorically rejected by the Federal Constitutional Court in its Wunsiedel judgment.
Similarly, the ECtHR has regularly held that freedom of expression also applies to views that "offend, shock or disturb the State or any sector of the population".
Unless I am misunderstanding this and something else entirely is implied, the goal of shaping public discourse is not a permissible goal of limitations on freedom of expression.
While this obviously does not make other rationales impossible, I do not think that this particular dog is going to hunt.
Also, I would question that the fact that social media are "hardly a free speech paradise" can be made into an argument to allow the state to deputize them for purposes that the state itself could not pursue. By that token, most any restriction on freedom of speech could be legitimized by the simple expedient of putting the onus of enforcement on private actors.
The main problem here is that any single private actor cannot effectively censor anything, due to competition with other private actors; but the state is not limited in such a fashion, as the universality of laws prevents competition in the marketplace of ideas to be an effective escape hatch from potential censorship.
1) I do not think it is constitutionally problematic to suppress speech that is illegal under criminal law – barring a finding from the Constitutional Court that these provisions are unconstitutional. Wunsiedel rejected the suppression of loud and radical, but legal expression (the same goes for the ECtHR rulings). So it does not really touch on my argument, unless and to the extent that you argue that 'overblocking' will occur. In that case however, I would humbly ask you to show me the evidence of that.
2) The point of the free speech paradise serves merely to illustrate the difficult argument that those who argue for the unconstitutionality of NetzDG face: if there is a requirement on private actors to uphold basic rights of users, then there is a reasonable argument that facebook is already violating freedom of expression through its terms and conditions. This in turn makes the limited attempt of NetzDG to enforce German criminal law online seem far less problematic. Private actors are not asked to delete legal content, only to live up to their existing legal obligations to delete: whether they can or could not do so do to market pressures is neither here nor there on that question. I do not think that is deputizing them in an effort to suppress expression in any real sense, nor do I think it falls under the definition of censorship.